Citation Nr: 0032865
Decision Date: 12/18/00 Archive Date: 12/28/00
DOCKET NO. 96-11 834 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an increased rating for lumbosacral strain
with right L4-5 radiculopathy, currently evaluated as 10
percent disabling.
2. Entitlement to a total disability rating based upon
individual unemployability due to service-connected
disability (TDIU).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Solomon J. Gully, IV, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1980 to
September 1988.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a September 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California. Upon reviewing the record, the Board is
of the opinion that further development is warranted.
Therefore, the disposition of the issues of entitlement to an
increased rating for lumbosacral strain with right L4-5
radiculopathy, and entitlement to TDIU benefits will be held
in abeyance pending further development by the RO, as
requested below.
REMAND
Recently enacted legislation, the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000),
contains extensive provisions modifying the adjudication of
all pending claims. Karnas v. Derwinski, 1 Vet. App. 308
(1991). The new law revises the former § 5107(a) of title 38
United States Code to eliminate the requirement that a
claimant come forward first with evidence to well ground a
claim before the Secretary is obligated to assist the
claimant in the developing the facts pertinent to the claim.
The other salient features of the new statutory provisions
impose the following obligations on the Secretary (where they
will be codified in title 38 United States Code is noted in
parentheses):
(1) The Secretary must provide application forms and notify
the claimant and the representative, if any, if his
application is incomplete, and of the information necessary
to complete the application (38 U.S.C.A. § 5102);
(2) The Secretary must provide the claimant and the
claimant's representative, if any, with notice of required
information and evidence not previously provided that is
necessary to substantiate the claim (38 U.S.C.A. § 5103(a));
(3) The Secretary must indicate which part of the information
and evidence, if any, is to be provided by the claimant and
which portion, if any, the Secretary will attempt to obtain
on behalf of the claimant (38 U.S.C.A. § 5103(a));
(4) The Secretary must make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate the
claim for the benefit sought, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim (38 U.S.C.A. § 5103A(a));
(5) The Secretary must make every reasonable effort to obtain
relevant records (including private records) that the
claimant adequately identifies to the Secretary and
authorizes the Secretary to obtain (38 U.S.C.A. §
5103A(b)(1));
(6) If, after making reasonable efforts to obtain relevant
records, the Secretary is unable to obtain the relevant
records sought, the Secretary shall notify the claimant that
the Secretary is unable to obtain records, and such
notification shall:
(a) identify the records the Secretary is unable to
obtain;
(b) briefly explain the efforts that the Secretary made to
obtain those
records; and
(c) describe any further action to be taken by the Secretary
with respect to
the claim (38 U.S.C.A. § 5103A(b)(2)).
(7) Whenever the Secretary attempts to obtain records from a
Federal department or agency under this subsection or
subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to
obtain those records shall continue until the records are
obtained unless it is reasonably certain that such records do
not exist or that further efforts to obtain those records
would be futile (38 U.S.C.A. § 5103A(b)(3)).
(8) In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (b) [38
U.S.C.A. § 5103A(b)] shall include obtaining the following
records if relevant to the claim:
(a) The claimant's service medical records and, if the
claimant has furnished the Secretary information sufficient
to locate such records, other relevant records pertaining to
the claimant's active military, naval, or air service that
are held or maintained by a governmental entity (38 U.S.C.A.
§ 5103A(c)(1)).
(b) Records of relevant medical treatment or examination of
the claimant at Department health-care facilities or at the
expense of the Department, if the claimant furnishes
information sufficient to locate those records (38 U.S.C.A. §
5103A(c)(2)).
(c) Any other relevant records held by any Federal department
or agency that the claimant adequately identifies and
authorizes the Secretary to obtain (38 U.S.C.A. §
5103A(c)(3)).
(9) In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (a) [38
U.S.C.A. § 5103A(a)] shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim (38 U.S.C.A. § 5103A(d)(1)).
(a) The Secretary shall treat an examination or opinion as
being necessary to make a decision on a claim for purposes of
paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of
record before the Secretary, taking into consideration all
information and lay or medical evidence (including statements
of the claimant)-
(i) contains competent evidence that the claimant has a
current
disability, or persistent or recurrent symptoms of
disability; and
(ii) indicates that the disability or symptoms may be
associated with the claimant's active military, naval, or air
service; but
(iii) does not contain sufficient medical evidence for the
Secretary to make a decision on the claim.
(10) Nothing in this section [38 U.S.C.A. § 5103A] shall be
construed as precluding the Secretary from providing such
other assistance under subsection (a) [38 U.S.C.A. §
5103A(a)] to a claimant in substantiating a claim as the
Secretary considers appropriate (38 U.S.C.A. § 5103A(g)).
(11) Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary (38 U.S.C.A. §
5107).
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340.
However, if the total rating is based on a disability or
combination of disabilities for which the Schedule for Rating
Disabilities provides an evaluation of less than 100 percent,
it must be determined that the service-connected disabilities
are sufficient to produce unemployability without regard to
advancing age. 38 C.F.R. § 3.341.
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities, provided that,
if there is only one such disability, it shall be ratable at
60 percent or more, and that, if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent or more.
38 C.F.R. § 4.16(a). In cases of veterans who are
unemployable by reason of service-connected disabilities, but
who fail to meet the percentage standards set forth in
38 C.F.R. § 4.16(a), entitlement to TDIU will be considered
on an extraschedular basis. 38 C.F.R. § 4.16(b).
Service connection is currently in effect for dysthymic
disorder, evaluated as 50 percent disabling, lumbosacral
strain with right L4-5 radiculopathy, evaluated as 10 percent
disabling, tinnitus, evaluated as 10 percent disabling, and
bilateral hearing loss, evaluated as noncompensably
disabling; the combined disability rating is 60 percent.
In January 1993, the veteran filed a claim of entitlement to
an evaluation in excess of 10 percent for lumbosacral strain
with right L4-5 radiculopathy, and entitlement to TDIU
benefits. Based on findings from a July 1995 VA examination,
the RO denied the veteran's claim in September 1995. The
veteran filed a notice of disagreement (NOD) with this
decision later that month, and submitted a substantive appeal
(Form 9) in March 1996, perfecting his appeal.
The RO continued the 10 percent rating for the veteran's
service-connected low back disorder, and the denial of TDIU
benefits in December 1998, based on VA and private medical
records from January 1988 to January 1997, VA Vocational
Rehabilitation reports from October 1997 to October 1998, a
copy of the veteran's college transcript, and testimony from
his February 1998 personal hearing.
Following VA orthopedic, psychiatric, and audiology
examinations in March 1999, the RO again denied an increased
rating for lumbosacral strain, and entitlement to TDIU
benefits in January 2000.
In January 2000 correspondence, the veteran reported
receiving private medical treatment for his service-connected
dysthymic disorder from "a Ph.D. for therapy and a
psychiatrist for medication monitoring." In addition, he
maintained that the RO incorrectly considered his 1998
earnings in finding that his income was in excess of the
level considered marginal employment for compensation
purposes, rather than his decreased earnings in 1999. The
veteran explained that he worked an average of 10 days per
month over the previous year, and concluded that this did not
constitute gainful employment.
Based on VA outpatient treatment records from February 1999
to July 2000, the RO continued the 10 percent evaluation of
the veteran's service-connected back disorder, and denied
entitlement to TDIU benefits in August 2000.
In correspondence later that month, the veteran reiterated
that the RO improperly determined that his income was in
excess of the level considered marginal employment for
compensation purposes based on his 1998 earnings. He
maintained that his service-connected disabilities prevented
him from working on a full-time basis, and indicated that he
worked a total of 93 days since August 1999, including some
half days.
As noted above, the veteran reported recent private medical
treatment for his service-connected psychiatric disorder in
January 2000 correspondence. He has alleged that these
records may contain relevant evidence. The Board finds that
a further effort to obtain these records is necessary as they
may be relevant to the disposition of the veteran's claim,
both for the purpose of establishing key facts, and for
purposes of evaluating the probative value of the veteran's
evidentiary assertions.
The veteran's statements essentially place VA on notice that
relevant evidence that support his claim may exist or could
be obtained. See Epps v. Brown, 9 Vet. App. 341 (1996);
Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore,
pursuant to VA's duty to assist the veteran in the
development of facts pertinent to his claim under 38 U.S.C.A.
§ 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (2000), the Board
is deferring adjudication of the issues of entitlement to an
increased rating for lumbosacral strain with right L4-5
radiculopathy, and entitlement to TDIU benefits pending a
remand of the case to the RO for further development.
As the VA is required to obtain relevant records held by any
Federal department or agency that the claimant adequately
identifies and authorizes the Secretary to obtain (38
U.S.C.A. § 5103A(c)(3)), in addition to records of relevant
medical treatment or examination of the claimant at
Department health-care facilities or at the expense of the
Department, if the claimant furnishes information sufficient
to locate those records (38 U.S.C.A. § 5103A(c)(2)), the
Board finds that it has no alternative under the new
legislation but to remand this matter so that the RO can take
the necessary steps to obtain all outstanding VA and private
treatment records. It should be further noted that whenever
the Secretary attempts to obtain records from a Federal
department or agency under this subsection or subsection (c)
[38 U.S.C.A. § 5103A(c)], the efforts to obtain those records
shall continue until the records are obtained unless it is
reasonably certain that such records do not exist or that
further efforts to obtain those records would be futile (38
U.S.C.A. § 5103A(b)(3)).
Finally, the veteran maintains that the RO incorrectly
considered his 1998 earnings in determining that his income
was in excess of the level considered marginal employment for
compensation purposes, and indicated that his current income
was substantially reduced. Therefore, after obtaining
information and authorization from the veteran, the RO should
request an income statement from the veteran's employer(s)
for all of his earnings from January 1999 to the present.
Accordingly, to ensure that the VA has met its duty to assist
the claimant in developing the facts pertinent to his claim,
and to ensure full compliance with due process requirements,
the case is REMANDED to the RO for the following development:
1. The veteran may submit additional
evidence and argument in support of his
claim. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
2. In order to ensure that all relevant
treatment records have been secured, the
veteran should be requested to identify
all sources of treatment that are not
currently a part of the record. The RO's
attention is directed to the veteran's
January 2000 reference to private medical
treatment for his service-connected
psychiatric disorder. After obtaining
the appropriate authorization, the RO
should attempt to obtain any such records
which have not been previously obtained.
The RO is again advised that efforts to
obtain VA records should continue until
they are obtained unless it is reasonably
certain that such records do not exist or
that further efforts to obtain those
records would be futile (38 U.S.C.A. §
5103A(b)(3)).
3. After any necessary information and
authorization are obtained from the
veteran, the RO should request an income
statement from his employer(s) for all
earnings from January 1998 to the
present.
4. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed in its entirety. In
particular, the RO should ensure that all
reasonable steps have been taken to
secure any outstanding medical records
identified by the veteran. If any
development requested above has not been
furnished, remedial action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
5. After undertaking any development
deemed appropriate in addition to that
specified above, the RO should re-
adjudicate the issues of entitlement to
an evaluation in excess of 10 percent for
lumbosacral strain with right L4-5
radiculopathy, and entitlement to TDIU
benefits. If the veteran's claim remains
denied, he and his representative should
be provided with a Supplemental Statement
of the Case. The applicable response
time should be allowed.
The case should then be returned to the Board for further
review. No action is required of the veteran until he is
notified. The purpose of this REMAND is to accomplish
additional development, and the Board does not intimate any
opinion as to the merits of the case, either favorable or
unfavorable, at this time.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Richard B. Frank
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).